Massachusetts widow, Nancy Magee, is suing PetSmart in an extremely novel tort case, claiming that the original owner contracted lymphocytic choriomeningitis (LCMV) from the hamster and then passed it along when her organs were transplanted in Thomas J. Magee. It is a proximate cause case that makes Palsgraf look positively simple in comparison. It is, however, only the latest in a series of interesting transplant cases recently.
Here is the basic causal chain.
1. The original woman buys hamster at PetSmart.
2. Hamster allegedly infects new owner with LCMV, a rodent-borne viral infectious disease.
3. The original owner then dies of unrelated stroke.
4. Dead owner’s organs are transplanted into various recipients including Thomas Magee, who has a liver transplant at Massachusetts General Hospital in April 2005. .
5. Magee contracted LCMV and dies.
Magee is now suing PetSmart for selling a third party a diseased rodent. We have come a long way from the time when privity (or a direct contractual relation) is required to sue for a product defect. Now, if you are injured by a Ford Pinto blowing up, you can recover even if you are not the owner and was injured as a pedestrian. Here, Magee is claiming that she (and obviously her husband) were the victims of the defective hamster. Whether this is a product liability or negligence case, it unclear.
The test, however, will come down to proximate causation and whether the chain of causation is too attenuated to hold PetSmart for an illness from a transplant involving a third party.
Factual causation is also likely to be challenged as to whether it is clear that this hamster was the only possible source of LCMV.
Finally, there is the question of the hospital liability. Recently, we have seen other cases involving the transplanting of cancerous organs (though this may be more difficult to spot), click here and here.
For the full story, click here.
Mespo,
“The question becomes how far distant from the immediate harm will we venture in compensating victims along the chain of causation.”
As in negligent infliction of emotional stress?
“so long as it can be established that the infection is A proximate cause of the death, as opposed to THE proximate cause, I think a jury question is presented.”
I’m sure you’ve heard the saying “The rules of evidence were created because juries are inherently stupid.”
Query: If the CDC states in its white paper that there’s no routine test for the disease, that you cannot test hamsters and the like for the disease without harming them, that the disease is incredibly rare & asymptomatic (almost always passing through healthy immune systems without notice) and that hamsters and the like normally contract the disease from everyday house mice, as do most humans — unless you’ve got a panel of Quincy M.D.’s, I’m curious as to how you even approach the issue of proximate cause as relating to the pet shop.
BTW, I hesitated as well on the organ transplant falling within the eggshell skull category; but after second thought realized that an organ transplant is not “as is.”
An intervening act is 1) independent of the original cause, 2) a voluntary human action or abnormal event and 3) occurs within the same time frame as the original act.
How anyone can get from Hamster, that may or may not have contracted disease from original seller, to disease in subsequent purchaser of hamster which results in death of ‘subsequent purchasers’ of [NOT THE HAMSTER BUT] previous owner’s organs via the “natural??” result of organ donation….
See how far fetched this is?
Jill:
Unlawful!
Hi Mespo,
You have a wonderful sense of humor, as do others. I think layperson is a good term for anyone who might be arrested for practicing without a licence, but I agree that we are all ignorant of many, many things that others do/know quite well.
While we’re peppering you with questions here, I’ve got one. What would you call the actions of the cheney-bush consortium towards the law?
Jill
DW:
I haven’t followed that legislation but I have worried about mandatory arbitration as an end run around the jury system for quite some time. These are rarely contracts made from positions of equal bargaining power, and are usually slanted in favor of the employer or bank or stock brokerage house. I have served as an arbitrator scores of times (and advocated in many more), but I find if I accept the plaintiff’s claim in toto, I am less likely to be called back by the defendant in the next arbitration. If it were my decision, I would bar them in consumer credit contract and tort settings, but they appear to be the wave of the future.
Bob,Esq:
I think you are correct that a “but-for” analysis is always the initial phase since a gap there destroys any linkage between negligence and the harm itself. I am more concerned about situations like the Wagon Mound 1 case, in which the cause of the harm was certainly the fire caused by the negligent fuel spill, there being no other explanation for the damage. The question becomes how far distant from the immediate harm will we venture in compensating victims along the chain of causation. If the chain is broken at any level, I would have no problem jettisoning the case on a “cause in fact” analysis.
In the hamster case, I do believe the fight could boil down to the science, but so long as it can be established that the infection is A proximate cause of the death, as opposed to THE proximate cause, I think a jury question is presented. As you know the defendant takes the plaintiff as they find them (thin skull rule) and mere susceptibility due to their status as a transplant patient, or even an increase in severity of reaction as opposed to exposure of a healthy person, would not, in my opinion, completely bar recovery.
If I strike an adult on the head with a given force and it does no harm , and I then strike a new born with the exact same force causing severe injury, will the proven effect of the force on the adult’s head preclude a recovery against me by the new born? I would argue that the cause in fact requirement has been met because without the force of my hand upon the skull, the injury to this particular plaintiff could not have occurred. Now we can discuss foreseeability (Cardozo); or actual consequence (Andrews); or even the Wagon Mound 2 case (where the magnitude of the potential risk compelled liability even if the probability of such a harm occurring was low), to determine legal causation.
One last question for our resident torts guy!
Mespo, have you been following HR 3010, the AFA..?
Any suggestions for amendments from your professional point of view?
For everybody, we have written on this topic more than a few times, but a growing danger for Americans is the increasing recourse to arbitration in lieu of the courts. The idea sounds good in principle and was originally viewed as a way of relieving crushing docket loads. But there was a fatal defect in that the arbitration companies were profit centers in themselves and were increasingly retained on the basis of their past track records of pro-business rulings. Generally it is near certainty that if you go to arbitration with a large Fortune 500 company, you will not emerge the victor. The Arbitration Fairness Act which is now in committee will attempt to address some of the mandatory arbitration problem. Here is a link to a discussion of the problem:
http://www.citizen.org/congress/civjus/arbitration/articles.cfm?ID=17346
for mespo, for your amusement.
http://www.atra.org/reports/hellholes/report.pdf
from your good friends at the American Tort Reform Assoc.
Whoops.
Mespo,
Correct me if I’m wrong, but the analysis of ’cause in fact’ alway precedes the analysis of ‘proximate cause’ so as to shed more light on the latter analysis.
While I make no claims of being a torts guru, a cursory review of the CDC’s conclusions as well as the Rhode Island’s Board of Health’s FAQ compiled specifically to address the issue seems to preclude an in depth analysis of ‘proximate cause’ in this case.
Mespo,
Correct me if I’m wrong, but the analysis of ’cause in fact’ alway precedes the analysis of ‘proximate cause’ so as to shed more light on the latter analysis.
While I make no claims of being a torts guru, a cursory review of the CDC’s conclusions as well as the Rhode Island’s Board of Health’s FAQ compliled specifically to address the issue seems to preclude an in depth analysis of ‘proximate cause’ in this case.
DW:
I was hoping not to date myself so precisely in history and philosophy.
Jill:
Just because you like herring roe, doesn’t mean you can’t enjoy rare Beluga caviar once in a while. Your observation about reliance on precedent is accurate but I guess you can see the tension between strict adherence to the past and the necessity of jurisprudence catching up with the culture. Palsgraf was one of those cases where the struggle between old concepts of privity being a condition precedent to recovery clashed with modern notions of negligence and foreseeability of harm being the standard for compensation. Andrews struck out on a much more futuristic tack and advocated consequence- based analysis rather than simply an expectation-based one. What the layperson (I hate that word since we are all citizens in a democracy with an interest here–am I a layperson because I cannot reproduce the recipe for my favorite sausage as well as my butcher can?) will see is the law growing out of its ancient cocoon to emerge as a new creature subject to more molting and adaptation as the social environment changes.
both a scholarly and moral endeavor…
Yes, I can see why you are an Adlai Stevenson man!
DW:
It is awfully nice to know that others find this sort of thing interesting. Obviously, I do and I consider it an odd affliction. The theory of recover for harms done is of great interest to me personally and professionally since it is a very human undertaking. I am aware of no other animal attempting restitution for wrongs committed, and I find the history of injury and consequence fascinating. I am sure you know of ancient practices where perpetrators were responsible to raise offspring of their murder victims, or thieves being indentured to their victims for periods of time. Tort law is just a branch of this longing to make victims whole, and the convolutions necessary to tailor a remedy for the myriad of specific harms is both a scholarly and moral endeavor.
I enjoy this type of analysis as well, but confess to liking gay burger stories and scripts for horror movies based in Disneyland just as much.
One thing I found fascinating about the legal discussion was it illuminated U.S. jurisprudence for this ignorant layperson. I’m aware that different societies look at law/justice in quite distinct ways. Ours reminds me of the talmud. In some ways the reliance on precedence makes it a closed system which would have difficulty dealing with new circumstances.
Mespo!!!!
“Without boring our other posters with too much legal analysis, suffice to say that…”
Please believe me. I love this type post. Its why I came to this site in the first place, looking for such things…
Analyze away!
And at length!
Thanks Mespo, this is what I suspect JT was shooting for when he started this blog. I am so happy to see it come about.
It has been invaluable and instructive reading your comments of how the law plays out in the courtrooms of our land. Don’t stop.
JT:
I have never liked the reasoning Wagon Mound 1 as the Privy Council simply avoided Andrews’s logic expressed in the Palsgraff dissent. Without boring our other posters with too much legal analysis, suffice to say that Wagon Mound 1 involved the leakage of furnace (bunkering) oil from a docked tanker (the Wagon Mound)that spread into the harbor and under the wharf. Hot metal from welding operations on the wharf fell onto cotton floating in the harbor igniting a fire that spread to another ship and the wharf. The issue for the Privy Council was whether a claim lay in negligence against the ship owners by the wharf owner for damages clearly caused by the fire. Apparently most experts believed that bunkering oil could not be ignited on water and thus the fire was totally unforeseeable. The owners of the dock lost due to this lack of foreseeability.
Andrews argued against this arbitrary standard of limiting recovery only to those harms proximately caused by the negligence, or put another way, only to foreseeable harms. Andrews said “[w]hat we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”
His example of a chauffeur who negligently collides with another vehicle carrying explosives is applicable here. If the blast injures a pedestrian walking along the street, the pedestrian may recover from the chauffeur since his presence is close in time and proximity and thus foreseeable. However, a person sitting at a window a block away and injured by shattering glass may not recover. Similarly, a baby ten blocks away and dropped by her nanny when startled by the blast is also precluded from recovery under the notion that such injuries are not foreseeable.
Andrews argues persuasively, in my mind, that the victims should not have their rights determined by what the negligent defendant or reasonable people might expect to happen, but rather the defendant should be responsible for what DID happen all along the chain of causation without regard to whether the event was predictable. As Andrews points out: “the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it.”
What this means to me is that PetSmart is responsible not only for the foreseeable harms but for all harms flowing from the negligence of selling infected hamsters. Any other result arbitrarily denies those harmed by the negligence, whether reasonable persons could foresee it or not. In essence the classification of victims, imposed by the test of foreseeability, ignores the fact that both sets of victims are harmed just the same by the exact act of negligence.
BobEsq:
You are shameless, and both examples appear to me to be instances of the tail wagging the dog!
As for quotations about lawyers:
My favorite:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
–Abraham Lincoln
The most humorous:
“I get paid for seeing that my clients have every break the law allows. I have knowingly defended a number of guilty men. But the guilty never escape unscathed. My fees are sufficient punishment for anyone.”
F. Lee Bailey
Far as I see….
Defendant’s motion for summary judgment granted.
Case dismissed.
Other habi-trail related info here:
http://www.health.state.ri.us/media/050523b.php